Opinion
No. 31536-0-II
Filed: April 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 03-1-01712-4. Judgment or order under review. Date filed: 02/11/2004. Judge signing: Hon. Robert L Harris.
Counsel for Appellant(s), F. James Mayhew, Attorney at Law, 401 W 13th St, Vancouver, WA 98660-2806.
Counsel for Respondent(s), Wendy Harmon Hanson, Clark County Prosecutors Office, 1200 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
Carlos Johnathan Del Cid appeals the trial court's refusal to impose a Special Sex Offender Sentencing Alternative(SSOSA) after he pleaded guilty to one count of child rape. Because the trial court did not abuse its discretion in rejecting the SSOSA, we affirm.
FACTS
In August 2003, Del Cid had consensual sex with A.L.H. at her home in Vancouver, Washington. At the time, A.L.H. was thirteen years old; Del Cid was twenty years old. A.L.H. said that Del Cid told her he was sixteen years old. Del Cid denied misleading A.L.H. about his age.
Del Cid pleaded guilty to one charge of second degree rape of a child. After he asked for a SSOSA, the court ordered a psychosexual evaluation. In addition, the Washington Department of Corrections completed a pre-sentence investigation report.
SENTENCING
The SSOSA evaluator reported that Del Cid `is an acceptable candidate for the SSOSA program.' Clerk's Papers (CP) at 31. The pre-sentence report acknowledged this finding; however, it also noted that Del Cid was facing deportation to Guatemala. Nevertheless, the Department recommended that the court sentence Del Cid to 78 months in prison and suspend execution of that sentence using the SSOSA option if he remains in the United States or if he returns in the future. The report also summarized the concerns of the victim's mother, `that if the defendant were to receive SSOSA and be released to the community, he might be a threat to herself or her daughter.' CP at 34.
The court denied Del Cid's request for SSOSA and sentenced him to 90 months. The court explained:
[O]bviously the first thing if you look to a treatment program is whether or not he has capability, one, of stability to function in it, and, two, the ability to pay. I find neither from his past history. Basically he doesn't have a family here, he doesn't have — his employment history is very, very scattered.
He's facing serious problems in the area of deportation. Basically non-U.S. citizens for this type of crimes [sic] it is high on the list of automatic deportation.
I don't see doing a meaningless sentence and placing a person in the community with that type of understanding.
So I do not feel SSOSA is an appropriate treatment opportunity in this situation. To me, it is basically a sentencing to the institution in the appropriate sentencing guidelines.
2 Report of Proceedings (RP) (Feb. 11, 2004) at 17.
When Del Cid's counsel asked for clarification, the court added:
Three factors. Lack of stability . . . lack of meaningful employability, to be able to carry on the expenses necessary to continue a treatment program; the fact that he is . . . subject to deportation at any point in time; and any future conduct; and the fact the previous conduct which includes the marijuana usage and drug usage is a factor that would also be weighing in his favor, that if there was another issue of any type of form of violation he would probably end up being automatic[ally deported].
Now, the other factor I considered was the fact that basically the type and nature of this is not an ingrained pedophile, which is the purpose of the sexual and SSOSA treatment program. Appeared to be more of a crime of opportunity.
2 RP (Feb. 11, 2004) at 24-25.
The judge sentenced him within the standard range.
ANALYSIS
Under SSOSA, certain first-time sex offenders may receive a suspended sentence if they comply with a treatment program as ordered by the court. RCW 9.94A.670(2); State v. Montgomery, 105 Wn. App. 442, 444, 17 P.3d 1237, 22 P.3d 279 (2001). Eligible offenders qualify for SSOSA only if their sentence does not exceed the statutorily specified maximum term. Montgomery, 105 Wn. App. at 444.
If the court finds an offender eligible for SSOSA, the court may order an examination to determine the relative risk to the community and whether the offender is amenable to treatment. RCW 9.94A.670(3). In deciding whether to grant a SSOSA, the court considers the SSOSA evaluator's report, the victim's opinion as to whether the offender should receive SSOSA, and whether the offender and the community will benefit from the program. RCW 9.94A.670(4).
We review a trial court's refusal to order treatment under SSOSA for an abuse of discretion. State v. Frazier, 84 Wn. App. 752, 753, 930 P.2d 345 (1997) (citing State v. Hays, 55 Wn. App. 13, 16, 776 P.2d 718 (1989)). A trial court abuses its discretion when its decision is manifestly unreasonable or is based upon untenable grounds or reasons. State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981) (citing State v. Blight, 89 Wn.2d 38, 41, 569 P.2d 1129 (1977)); State v. Moran, 119 Wn. App. 197, 218, 81 P.3d 122 (2003), review denied, 151 Wn.2d 1032 (2004). An untenable decision is one which `no reasonable man would take the view adopted by the trial court.' See Cunningham, 96 Wn.2d at 34 (citing Blight, 89 Wn.2d at 41). The sentencing court does not abuse its discretion simply by rejecting an evaluator's SSOSA recommendation. See Frazier, 84 Wn. App. at 754; Hays, 55 Wn. App. at 17.
In addition, under the Sentencing Reform Act of 1981 (SRA), a `sentence within the standard range for the offense shall not be appealed.' RCW 9.94A.210(1); see also, State v. Mail, 121 Wn.2d 707, 710, 854 P.2d 1042 (1993).
Here, the sentencing court rejected the SSOSA recommendations, reasoning that the program would not benefit Del Cid or the community because Del Cid lacked the necessary stability to function in the program, lacked meaningful employment to pay for the program, would likely be deported, and was not an `ingrained pedophile.' 2 RP (Feb. 11, 2004) at 24-25. The court refused to impose `a meaningless sentence' and place Del Cid in the community when it was likely that he would not be around to complete it. 2 RP (Feb. 11, 2004) at 17.
Del Cid contends that the record does not support the court's determination that he lacked meaningful employment. Indeed, according to the psychosexual evaluation, Del Cid reported that he has been consistently employed since he was 15. But he also stated that he left his most recent job as a caregiver in California to return to Vancouver, and he was unemployed at the time of the incident. In addition, although he claimed he had never been fired, he has changed employment several times. The record supports the trial court's finding.
Del Cid argues that contrary to the court's finding, he has had long-term stability in his residences. While there is evidence to suggest that for most of his life he has had a stable residence, the psychosexual evaluation also states that he has made frequent changes of residence during the past year and that his lifestyle borders on transient. Del Cid told the evaluator that he had been staying with a friend for approximately one month at the time of his arrest. Before that, he stayed with his mother in California for approximately seven months. Before that, he lived with his father for two weeks in Vancouver. Before that, he lived with his ex-girlfriend. He also claimed that since the arrest he has had no contact with any friends; no one has visited him except his family. Del Cid also reported that although he is close to his mother, he has no relationship with his biological father. The evaluator also found that Del Cid may lack social support. The record supports the trial court's finding that Del Cid's residence and life style was not stable.
Del Cid argues that the court is prohibited from basing a sentence on a defendant's race or nationality. But the court did not reject the SSOSA because of his race or nationality. Rather, the court reasoned that a SSOSA would be meaningless because Del Cid would likely be deported soon. While no deportation order had apparently been entered, the psychosexual evaluation reported that `[a]ccording to Barrett Salvato of Immigration and Customs Enforcement, based on [Del Cid's] current conviction, it will be recommended that [he] is deported to Guatemala as he is not a United States Citizen.' CP at 38. And although Del Cid may contest a deportation proceeding, the trial court did not abuse its discretion in weighing the risk of deportation before granting a SSOSA.
Finally, the trial court properly considered the fact that A.L.H.'s mother also opposed a SSOSA for Del Cid.
We conclude that the trial court did not abuse its discretion in rejecting Del Cid's bid for a SSOSA.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, A.C.J. and HOUGHTON, J., Concur.